Article 44 of the Indian Constitution directs the Indian State to implement the Unified Civil Code across the country. In a pluralistic, multi-ethnic and multi-religious country, the Unified Civil Code would pave the way for national unity and integration. But as India enters the seventy-fifth year of its independent existence, that goal remains a far-fetched dream.
The unified civil code will ensure fairer laws, which are essential for the marginalized sections of society and especially for women. Explained patriarchal personal laws of Indian communities, for example the Hindu Code Bills and the Shariat of Islam, are inherently highly discriminatory and create inequality from the start. In the years following India’s independence, the Hindu Code Bill was reformed. Shariat remained untouched, leaving Muslim women with gender discrimination in marital relationships.
Historic opportunities to implement the Uniform Civil Code have already been missed. In the 1970s, debates over Muslim personality rights rocked both Parliament and society when Shah Bano, a 62-year-old Muslim widow, was divorced from her husband Mohammad Ahmad Khan, a well-known lawyer in Indore. Fourteen years after his marriage to Shah Bano, Khan married a younger woman and began living with two wives. In 1978, when Khan stopped giving Shah Bano a sum of 200 Indian rupees (INR), which he appeared to have promised, she went to the local court under Section 125 of the Code of Criminal Procedure, demanding alimony of 500 INR for herself and her children. Months later, Ahmad divorced Shah Bano, invoking the irrevocable triple talaq, which allows a Muslim man to divorce his wife at will orally, email or phone. Khan resorted to Islamic personal law, which relieves the husband of the burden of bearing the responsibilities of his ex-wife. Khan was also in a second marriage, which is permitted under Islamic law.
The Madhya Pradesh High Court ruled in favor of Shah Bano, ordering Khan to pay more alimony than the original amount. When Khan appealed this ruling to the Supreme Court, a two-judge panel upheld the ruling that Section 125 also applied to Muslim women. Large sections of Muslims were angry at the decision, which they saw as an attack on their religion and an attempt by the court to interfere with personal law. As protests erupted in the country, India’s Congress-led Parliament passed a special law overruling the court’s ruling, exempting Muslim women from the scope of Section 125 and stripping them of post-divorce maintenance rights. Muslim women, already a vulnerable segment of society, were further relegated to subjection. They would henceforth be deprived of the rights that their members of other religious communities would continue to enjoy.
The motives for this decision were political in nature. The Congress government was unsettled by a looming loss in the upcoming elections if attempts to implement the Unified Civil Code were seen as encroaching on Muslims’ personality rights. Uniformity of law was a far-fetched dream. A seemingly secular country was destined to be governed by laws rooted in religion, even when the laws were patently discriminatory and exploitative.
For a country where religious denominations have had a significant impact on the political spectrum, it is difficult for the government to overlook religious connotations. Especially with the Indian variant of secularism, which wants to protect all religious communities equally, the task of administering and balancing the relationship between religion and politics is a Herculean task. Still, it is important that the country does not let the weaker sections of society languish amidst patriarchal injustice. Perhaps a way forward will be to draft the Unified Civil Code by taking into account the inclusive and best practices of personal law that come from all religions. A committee of eminent legal and constitutional experts should be formed in consultation with stakeholders from all sectors of society, alongside the participation of intellectuals, academics and civil society, to promote social justice and social progress.
Major Islamic states that remain ruled by Sharia law have adequately reformed their legal frameworks, abolishing polygamy and triple talaq. Although India is emerging as a growing economic power on the world stage, India’s attendant promise of domestic social justice remains largely unfulfilled. Comprehensive legislation, in which the progressive principles of religion are compatible with the principles of equality and justice, should be drafted and integrated to ensure the progress of the marginalized sections of Indian society, addressing gender discrimination and promoting social and legal equality to promote.
